McAndrew and Repatriation Commission

[2008] AATA 1061

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1061

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 2007/2468

VETERANS' APPEALS DIVISION		)
Re		KEITH McANDREW

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date27 November 2008  

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes its decision that pension is payable at 100% of the general rate under s 22 of the Veterans’ Entitlement Act 1986 from and including 29 July 2005 and at the special rate under s 24 of that Act from and including 1 August 2005.

................[Sgd].....................

R G Kenny Member

CATCHWORDS

VETERANS’ AFFAIRS – veteran’s entitlements –veteran in receipt of 100% general rate pension – application for increase in pension – veteran now not able to undertake remunerative work for more than 8 hours per week because of war-caused conditions– veteran prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – veteran suffering a loss of salary or wages or of earnings on his own account –– special rate of pension payable - decision set aside – determination of date of effect

Veterans’ Entitlements Act 1986 ss 5Q, 15, 19, 21, 22, 24, 119, 120, 157 and 177

Flentjar v Repatriation Commission (1997) 26 AAR 93

Sheehy v Repatriation Commission (1996) 137 ALR 223

Starcevich v Repatriation Commission (1987) 76 ALR 449

Re Draper and Repatriation Commission (1986) 12 ALD 167

Re Clare and Repatriation Commission (1989) 18 ALD 474

White v Repatriation Commission (2001) 114 FCR 494

Sheehy v Repatriation Commission (1996) 41 ALD 205

Repatriation Commission v Butcher [2007] FCAFC 36

Byrne v Repatriation Commission (2001) 33 AAR 410

Birtles v Repatriation Commission (1991) 24 ALD 545

REASONS FOR DECISION

27 November 2008     Mr RG Kenny, Member      

BACKGROUND

1. On 29 July 2005, Keith McAndrew made a claim under s 15 of the Veterans’ Entitlements Act 1986 (“the Act”) for an increase in the level of pension paid to him in respect of incapacity from the following conditions accepted as being related to his eligible service with the Australian Regular Army (ARA): solar keratosis, bilateral sensori neural hearing loss, post traumatic stress disorder and alcohol dependence. His claim was rejected by a delegate of the Repatriation Commission on 14 July 2006 and pension was continued at 100% of the general rate. In so doing, the delegate determined that Mr McAndrew did not qualify for the intermediate or special rate of pension under ss 23 or 24 of the Act, respectively. That assessment decision was affirmed, on 26 February 2007, by the Veterans’ Review Board (“the Board”) and Mr McAndrew seeks further review by the Administrative Appeals Tribunal (“the Tribunal”).

ISSUES AND LEGISLATION

2.      Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case[1].  In that process, neither party bears an onus of proof[2]. The procedure to be followed is provided for in s 19 of the Act and s 19(5C) thereof requires the rate of pension to be assessed from time to time during the assessment period. The term assessment period is defined in s 19(9) of the Act as the period starting on the application day and ending when the claim or application is determined. It is not disputed that the application day in this case was 29 July 2005 and that the assessment period runs from that day until the matter is determined by the Tribunal.

[1] see s 120(4) and s 119(1) of the Act, respectively

[2] see s 120(6) of the Act

3. No challenge is made by Mr McAndrew in this matter to the general rate of pension paid to him at 100%. The issue raised is whether he meets the criteria for payment of the special rate of pension under s 24 of the Act. It is not in dispute that he was under 65 years of age at the time of his claim or that he is in receipt of pension at a rate greater than 70% of the general rate. Therefore, he meets the preliminary requirements of s 24(1)(aa), (aab) and (a)(i) of the Act for the special rate. Further, it was conceded by Mr Kelly, for the respondent, that Mr McAndrew meets the incapacity component in s 24(1)(b) of the Act. This is that he is totally and permanently incapacitated in that his incapacity from his accepted disabilities is, of itself alone, of such a nature as to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. The remaining component of the provision is s 24(1)(c) of the Act. This comprises two limbs which require that he:

is, by reason of incapacity from his accepted disabilities alone, prevented from continuing to undertake remunerative work that he was undertaking (first limb); and

is, by reason thereof, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity (second limb). 

4. The issue for determination is whether Mr McAndrew’s circumstances meet those requirements in s 24(1)(c) of the Act.

EVIDENCE

5.      Mr McAndrew gave the following evidence.  He served in the ARA from June 1969 until September 1994 as a medical assistant which was equivalent, in a civilian context, to a nurse.  He requested his discharge because he had been denied the prospect of promotion above his then rank of sergeant.   He continued in the Army Reserve.  He also worked as an agency nurse, usually for two nights per week, for about 3 months but he began to feel stressed and fearful of making mistakes.  His last two nursing allocations were for young children and a young girl who had attempted suicide.  He felt that he could not continue as he did not like to see children suffer.  He surrendered that position and, in 1995, moved to Phuket in Thailand which he had visited in 1992 for a rest and recuperation period during peace-keeping duties with the United Nations in Cambodia.  He still lives in Phuket where he finds people to be more understanding, where he can escape the pressure he feels in Australia and where he is able to live on his army pension.  He has a Thai partner with whom he lives.  He described her as his carer.

6.      During his Army Reserve service, which continued until 2005, he returned to Brisbane each year to serve as a medical administrator for two months on a full-time basis with an Army Reserve unit at Gallipoli Barracks.  His services were not required for the remaining 10 months of the year as the position was taken by another sergeant.  It was a clerical position which mainly involved him in updating the medical files of the unit.  He was required to work a 30 hour week during the two months but, because he was on his own, he was able to come and go and would usually work for about three hours and then repair to the local hotel or club to consume alcohol.  In 2004, he reduced his hours to 15 per week because he had problems fulfilling his commitments.  Since he resigned from the Army Reserve, he has continued to live in Thailand and travels to Australia for about two weeks each year to visit his mother and his children.    

7.      From 1994 until 1999, Mr McAndrew was part of the Ready Reserves and was required to maintain a high level of fitness for which he was tested each year.  This involved undertaking weaponry training, route marches with heavy packs and a 5 kilometre run as well as a range of exercises such as sit-ups and push-ups.  After 1999, with the disbanding of the Ready Reserves, only the latter exercises were required.  He was able to complete all of the test demands to the requisite standards.

8.      Thailand’s visa restrictions prevent Mr McAndrew from obtaining employment in Thailand.  He is also required to leave the country every three months to retain his visa status and he does this by crossing a national border and returning on the same day.  He has had an association with some bars in Phuket.  He supervised a friend’s bar for about two weeks and this involved him in merely sitting at the bar and providing a presence which ensured that staff carried out their tasks appropriately.  He was able to consume free alcohol while he sat at the bar.  His partner owns a bar and, again, Mr McAndrew attends, sits at the bar, consumes free alcohol and keeps his eye on the staff.  From 1995 to 2000, Mr McAndrew and two other men owned a bar.  His share cost $15,000.  Again, he did not work there but performed the same supervisory role and obtained alcoholic drinks.  These were at cost price.  The enterprise was not successful and, when his business partners left, it closed as Mr McAndrew could not afford to run it on his own.  Mr McAndrew said that he received no income from any of the associations he had with bars in Thailand. 

9.      Mr McAndrew was referred to documents he completed in 1999 to support his claim for acceptance of various orthopaedic conditions in his knees, lower back and neck as being related to his eligible service.  He claimed, at that time, that these were causing him pain on a daily basis and severe limitations on his sexual activity, walking, driving a car and engaging in any sporting activity.  He saw orthopaedic surgeon Dr Tony Blue in 1999 in relation to these pains.  In his evidence, Mr McAndrew said that the severity of symptoms he had felt in these areas began to decline after 1999 when the Ready Reserve fitness standards were no longer required of him.  He also said that they presented no difficulty for him in his medical administration work with the Army for his two months session each year.  It was around 1999 when he began to experience balance problems.  At that time, he believed that these were associated with the problem he felt in his back and legs.  Mr McAndrew described the balance problems as worsening over the last three years.

10.     Mr McAndrew was referred to documents he completed in 2001 to support a further claim for acceptance of post traumatic stress disorder and skin and eye problems as being related to his eligible service.  There, he again implicated his knees and lower back, as well as his ankles, as causing him problems in walking, driving a car and lifting heavy items. In those documents, he wrote that, after about 8 hours work, he began to have problems with his knees and had trouble keeping his balance most of the time.  In his evidence, he said that the orthopaedic matters had continued to improve since then although they still gave him some pain.  At that time, he still believed that his imbalance was related to them.  He said that the orthopaedic matters did not prevent him from carrying out his duties as a medical administrator.

11.     In August 2005, Mr McAndrew left the Army Reserve.  He had been offered a promotion to Warrant Officer (WO) but declined because he felt that he could no longer perform the required work and felt that he could not continue to come to Australia for two months per year because of the stress he felt while in this country.  He was always anxious to return to Thailand whenever he was in Australia because he felt “stressed out” when he was here.  He said that he would be returning to Thailand on the day following the hearing and that was despite the fact that his mother was very ill and unlikely to live more than a few days.

MEDICAL EVIDENCE

12.     In evidence was a medical report completed in July 2002 by Dr Janet Tsang. She was then Mr McAndrew’s local medical officer.  She referred to Mr McAndrew’s neck complaint as being permanent but as causing moderate effect on certain functions only.  She also referred to his back and knee condition as being, respectively, temporary and intermittent and as having a minor effect on certain functions only.  She concluded that he was capable of working on a part-time basis.

13.     Mr McAndrew’s local medical officer in 2004, Dr Nyst, completed, on 27 July 2004, a detailed summary of the effects on Mr McAndrew of “stress”.  He wrote that Mr McAndrew avoids contacts with people who cause him to remember his past and trigger flashbacks.  He noted that this was happening in Australia following Mr McAndrew’s return from Cambodia and that he lives in Thailand where he is able to escape those contacts and has no involvement with Australians.  Dr Nyst also described him as gaining strong support from his Thai partner there.

14.     Also in evidence were reports by psychiatrist, Dr Janis Carter; specialist in occupational medicine, Dr Ian Hadwin; orthopaedic surgeon, Dr Tony Blue; and neurologist, Dr John Cameron.  Dr Carter and Dr Hadwin also gave oral evidence.

15.     Dr Carter’s reports were dated 22 July 2004 and 20 July 2005.  She diagnosed post traumatic stress disorder and alcohol dependence and described Mr McAndrew as appearing “spaced out” and as expressing eagerness to return to Thailand.  She recommended that he cease work and thought he could place others in jeopardy if he continued.  She believed that, if he were to return to the workforce, she would be obliged to warn his employer about him.  In giving evidence, Dr Carter was advised that Mr McAndrew was to return to Thailand the following day even though his mother was not expected to live more than a few days.  Dr Carter expressed surprise at this but concluded that it probably reflected his feelings of being unable to provide any assistance and of being anxious to return to Thailand where he is able to function in a way that he can afford and in a way that is satisfactory to him.  Her opinion, in each of her reports and in her evidence, was that Mr McAndrew was not capable of working 8 hours per week because of his psychiatric status and was totally and permanently disabled.

16.     Dr Hadwin’s report was dated 15 July 2008.  His examination of Mr McAndrew’s musculoskeletal system revealed no joint laxity and a full range of movement in the knee, hip and shoulder joints. In his evidence, he described Mr McAndrew as having pain-free joints.  He considered that orthopaedic conditions were not such that they would prevent Mr McAndrew from working full-time or substantial part-time hours.  Dr Hadwin agreed that undertaking substantial physical activity, such as that required for the Ready Reserves, could precipitate pain in the lower limbs.  He also agreed that, if that activity ceased, the symptoms would improve.  Dr Hadwin agreed that, if Mr McAndrew experienced balance problems at the time of experiencing back and lower limb pain, it was understandable that he might relate the balance problem to those factors.  He said that the balance problem may be related to his alcohol consumption but that a neurologist was best placed to give an opinion on that matter.  He concluded that Mr McAndrew’s psychiatric conditions would prevent him from working 8 or more hours per week.

17.     Dr Blue completed his report on 26 October 1999.  He described Mr McAndrew as suffering from naturally occurring multilevel cervical disc degeneration and early L5/S1 disc degeneration.  His left knee was described as normal and his right knee as the site of adolescent Osgood Schlatter disease with loose body formation. He wrote that there was a normal range of lumbar movement and mobility.  He described normal range of movement and ligamentous stability in both knees.

18.     In his report, dated 28 October 2008, Dr Cameron advised that he had examined Mr McAndrew as well as the results of various blood and eye tests and CT scans.  He concluded that Mr McAndrew has a prominent cerebellar disturbance with mid-line atrophy to which he attributed Mr McAndrew’s imbalance.  He also described prominent sensory neuropathy, bilateral nystagmus, poor convergence and poor concentration.  He described him as being quite ataxic in walking and in executing rapid alternating movements and finger-nose and heel-shin testing.  He considered that these findings, including visual symptoms, were compatible with long standing alcohol abuse.  Dr Cameron’s opinion was that it was improbable that there would be any significant improvement if Mr McAndrew were to abstain from alcohol.  He concluded that Mr McAndrew was totally impaired and unable to undertake any remunerative work particularly that performed by a medical orderly.

OTHER EVIDENCE

19.     The documents lodged by Mr McAndrew in relation to his earlier claims in 1999 and 2001 were in evidence.  On 29 January 1999, he specifically identified disabilities relating to his “right knee”, “left knee”, “lower back” and “neck injury cervical/thoracic”. His local medical officer at that time, Dr M Denovan, identified “sprained ligament”, “probable damage to synovium or patella”, “ligament strain” and “muscle sprain”, respectively.  Mr McAndrew stated at that time that these conditions gave him “pain in the neck, back and knees which persists on a daily basis” and that he had been downgraded medically because of his knee problems.  His associated lifestyle questionnaire included the comments that he is limited in his sexual activity because of his back and knee pain; that he takes analgesics for the pain; that he can only sit for a short time when driving before he has to stop after about an hour; that the conditions give him problems in walking up and down stairs all the time; that he has problems walking up and down hills, on inclines and on uneven ground most of the time; that he cannot lift heavy items at all; and that he can lift light items if he takes his time.  He implicated his knees, back and neck problems as the cause of these limitations.  He also wrote:

“Because of the continual pain especially in my neck and back, I have become more irritable and cranky, often snapping at people.  The pain often causes loss of sleep because I cannot find a comfortable position. I take analgesics on a regular basis to try and combat the pain.....”

20.     In the lifestyle questionnaire attached to the claim made by Mr McAndrew in 2001 for eye, skin and nervous problems, he again referred to his back and knee ache limiting his driving and walking capacity.  He referred to having trouble keeping his balance and also wrote that he had trouble after working for about 8 hours mainly because of his knees.

21.     In evidence was a letter, dated 20 June 2005, in which Mr McAndrew declared to the officer commanding his Army Reserve unit that he was resigning with effect from 8 August 2005.  He wrote that this was done on the advice of Dr Carter.  He wrote a further letter, dated 21 July 2005, to the Department of Veterans’ Affairs and declared that, on the advice of Dr Carter, he would cease work on 1 August 2005.  Also in evidence were a letter, dated 2 June 2006, and an email message, dated 13 October 2005, written by Warrant Officer A Inglis, Chief Clerk at Gallipoli Barracks.  Therein, he advised that the last parade date for Mr McAndrew was 31 July 2005 and that there was no requirement for a medical examination at the cessation of service with the Army Reserve.

22.     In a statement made by Mr McAndrew on 29 February 2008, he denied that his knees or his neck had any effect on his ability to carry out his clerical duties. He also said that he had felt no problems with his back for 10 years. 

SUBMISSIONS

23.     For Mr McAndrew, Mr Harding submitted that the relevant remunerative work in this matter comprises medical assistance, in which he engaged while in the ARA and as an agency nurse for three months thereafter and the medical administration work he undertook with the Army Reserve. In short form, these were nursing and clerical work.  He submitted that bar work should not be considered because Mr McAndrew had not actually engaged in any bar work in Thailand as he received no remuneration for this, merely sat at the bar consuming alcohol, maintained a presence there and received no return on any monies he invested.  Mr Harding submitted that psychiatric conditions prevented Mr McAndrew from continuing to undertake nursing and clerical work.

24.     Mr Harding also submitted that accepted disabilities were the only factors which prevented him from continuing to undertake nursing and clerical work.  He submitted that orthopaedic conditions had no role to play because the underlying problem was imbalance.  Earlier complaints of neck, back and knee pain were associated with the exercise regimen imposed on Mr McAndrew by the fitness requirements of the Ready Reserve.  These dramatically reduced after 1999 and the symptoms relating to those conditions have almost disappeared.  Mr McAndrew incorrectly attributed imbalance to his orthopaedic concerns.  As these lessened in extent, he continued to experience imbalance and this has now been identified as being related to his alcohol consumption.  Mr Harding submitted that the documentation completed by Mr McAndrew in 1999 and 2001 should be considered in that light.  On that basis, he submitted, there were no non-accepted disabilities that impacted on Mr McAndrew’s capacity to work.   Further, his decision to live in Thailand, where he was not permitted to work, did not prevent him from doing so because, for about 10 years, he returned to Australia and worked full-time for two months until the effects of his psychiatric conditions prevented him from doing so.  Mr Harding submitted that the strength of Mr McAndrew’s willingness to work was seen in his continuation of Army Reserve work even after Dr Carter advised him to cease.  Mr Harding submitted that, but for the accepted disabilities, Mr McAndrew would have continued in employment and, accordingly, has suffered a loss of earnings.

25.     Mr Kelly submitted that the relevant remunerative employment included not only nursing and clerical work but also bar work.  This was because Mr McAndrew gained a benefit in the form of alcohol from his supervisory activity in bars in Thailand even though he did not receive money.

26.     Mr Kelly accepted that Mr McAndrew’s imbalance is related to his alcohol dependence but submitted that the effects of his orthopaedic conditions were real and continuing, caused him pain and interfered with his working capacity.  He submitted that, even when he had reduced his hours from 6 to 3 hours per day, he was working for more than 8 hours per week and was doing so even after Dr Carter recommended that he cease work.  He submitted that the fact that Mr McAndrew was offered a promotion to the rank of Warrant Officer demonstrated that he must have been performing his allocated tasks in the Army Reserve in a competent manner.  He submitted that Mr McAndrew made a conscious decision to live in Thailand with the knowledge that he would not be permitted to engage in remunerative work there and that this is a reason for his not being so engaged apart from as a supervisor in a friend’s bar, in a bar in which he had a business interest and in his partner’s bar.

CONSIDERATION

27. As noted above, Mr Kelly conceded that Mr McAndrew meets the requirements of s 24(1)(aa), 24(1)(aab), 24(1)(a)(i) and 24(1)(b) of the Act. On the basis of the evidence of Dr Carter, Dr Hadwin and Dr Cameron, I am satisfied that this concession was properly made.

28.     The Federal Court in Flentjar v Repatriation Commission[3] said that a proper application of s 24(1)(c) of the Act requires consideration of the following questions:

1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?

2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran, by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

[3](1997) 26 AAR 93.

Step 1:

29.     The term remunerative work is defined in the Act to include any remunerative activity[4].  Mr McAndrew engaged in nursing in the ARA until 1994 and for a few months after he was discharged.  This is clearly remunerative work that Mr McAndrew was undertaking.

[4] See s 5Q of the Act.

30.     Mr McAndrew’s work with the Army Reserve in which he engaged from 1994 until 2005 involved him in administrative activities in the form of clerical work.  This was not carried out on a full-time basis throughout the year.  In Sheehy v Repatriation Commission[5], the Full Federal Court said that it was:

“….inappropriate to attempt to define a minimum period during which any work of any kind must be performed before it can be said that it qualifies as remunerative work that the veteran was undertaking.”[6]

[5](1996) 137 ALR 223.

[6] at 228.

31.     In that case, the veteran had attempted to work as a storeman for two periods of 1 week and 2 weeks, respectively, but was unable to do the work.  Rather than consider it on the basis of the length of the period concerned, the Court preferred to say the remunerative work that the veteran was undertaking must have been “performed” or “successfully undertaken” or “effectively undertaken”.  In Starcevich v Repatriation Commission[7], Fox J referred to the need for “substantial” remunerative work and Jenkinson J suggested that it must have continued for more than a very short period.  Mr McAndrew’s clerical work was undertaken on a regular basis for 30 hours per week for two months each year and, significantly, for a period of some 10 years.  In his last two years, he reduced this commitment to 15 hours per week.  Because of the 2 months duration of this work each year, the number of years he continued with it and the clear commitment to it that Mr McAndrew demonstrated over that time-frame, I am satisfied that clerical work was also relevant remunerative work that Mr McAndrew was undertaking.

[7] (1987) 76 ALR 449 at 454.

32.     In relation to his submission concerning bar work, Mr Kelly referred to Re Draper and Repatriation Commission[8] and Re Clare and Repatriation Commission[9].  In Draper, working for 20 hours per week as a missionary in return for an allowance sufficient to cover board and lodging was held to be remunerative work.  In Clare, the Tribunal held that working for 3 to 4 hours per day in a hotel in return for board and lodging was remunerative work.  Reference may also be made to the obiter dicta of Conti J in White v Repatriation Commission[10] that there is nothing in the statutory context to exclude from “remunerative work the provision of goods or services received by a veteran which is quantifiable in money”.  In that case, the reference was to an accountant who did accountancy work for his neighbours in a rural area in exchange for goods and services in lieu of fees.  Those cases are distinguishable from that of Mr McAndrew because, there, the veterans were carrying out substantive work.  On Mr McAndrew’s evidence, he was not engaged in the processes of dealing with customer’s demands, serving alcohol to them or playing an active management role.  He merely sat at the bar maintaining a presence and consuming alcoholic drinks.  In the case of the bar partly owned by him, his evidence was that he paid cost price for the drinks he consumed.  As I understand it, that is the amount that he and his business partners paid for the product and, hence, there was no element of remuneration to him.  He consumed free drinks in the bar of his partner with whom he lives and this amounts to no more than a domestic arrangement between themselves.  There was a period of approximately 2 weeks when he sat at the bar of friend in exchange for free alcohol.  I am satisfied that such a short period of activity is neither substantial nor substantive[11] and is not remunerative work that Mr McAndrew was undertaking for the purposes of s 24(1)(c) of the Act.

Step 2:

[8] (1986) 12 ALD 167.

[9] (1989) 18 ALD 474.

[10] (2001) 114 FCR 494 at 504-505.

[11] Sheehy v Repatriation Commission (1996) 41 ALD 205 at 210; Repatriation Commission v Butcher [2007] FCAFC 36 at [15]-[17]

33.     I am satisfied that Mr McAndrew is, by reason of his accepted disabilities, prevented from continuing to undertake either nursing work or clerical work and has been in that situation since his last parade date with the Army Reserve.  On the evidence of WO Inglis, this was on 31 July 2005, two days after the commencement of the assessment period.  Accordingly, the second of the Flentjar questions is answered “yes”.

Step 3:

34.     The third of the Flentjar questions in Mr McAndrew’s situation is whether accepted disabilities are the only factors preventing him from continuing to undertake nursing or clerical work.

35.     In relation to nursing, Mr McAndrew’s evidence was that he left the ARA because he was not promoted.  He said that he was stressed, scared of making a mistake and unwilling to see children suffer while working as an agency nurse.  He then moved to Thailand where he was unable to engage in any form of remunerative work because of visa restrictions.  Dr Carter noted that he lives there because of the lower cost of living and the support he gets from his partner.  While I accept that those are relevant considerations for Mr McAndrew’s remaining there, I am also satisfied that his psychiatric conditions played a part in his decision to move to Thailand.  Dr Nyst wrote that Mr McAndrew avoids contacts with people who cause him to remember his past and trigger flashbacks, that this was happening in Australia following Mr McAndrew’s return from Cambodia and that he lives in Thailand where he is able to escape those contacts and has no involvement with Australians.  Dr Carter referred to his being anxious to return to Thailand where he is able to function in a way that he can afford and in a way that is satisfactory to him. 

36.     I am satisfied that Mr McAndrew’s decision to move to Thailand was prompted by the effects on him of his war-caused psychiatric conditions and should not be counted against him in relation to obtaining employment as a nurse.[12]  Nevertheless, an additional consideration is the length of time that Mr McAndrew has been out of nursing.  This is 10 years as at the start of the assessment period.  Mr McAndrew has not attempted to re-engage in nursing on any of his annual trips to Australia.  I am satisfied that Mr McAndrew’s war-caused conditions are not the only reason for his no longer working as a nurse and that the answer to the third Flentjar question is “no” in relation to that form of remunerative work.  

[12] See Byrne v Repatriation Commission (2001) 33 AAR 410 at 413 in relation to s 24(2)(b) of the Act and Birtles v Repatriation Commission (1991) 24 ALD 545 at 554 in relation to s 24(1)(c) of the Act.

37.     I am satisfied that Mr McAndrew’s psychiatric conditions and the sequela of these are the only factors that prevent him from working in a clerical capacity.  His relocation to Thailand has prevented him from undertaking that type of work there but it has not impacted on his annual two month working period with the Army Reserve in Australia.  There are references to orthopaedic conditions by Mr McAndrew in documents completed by him in 1999 and 2001.  Taken at face value, they suggest that his neck, back and knee conditions impacted substantially on his capacity to sit for long periods as would be required in carrying out clerical work.  His evidence was that these symptoms lessened in severity after 1999 with the cessation of the physical demands of fitness testing required by the Ready Reserves.  Dr Hadwin, in his evidence, recognised the prospect that the improvement described by Mr McAndrew could occur in those circumstances.  Mr McAndrew also gave evidence that it was while he experienced those symptoms that he attributed his imbalance to them.  Again, Dr Hadwin recognised that this may occur. 

38.     Mr McAndrew does have some underlying multilevel cervical disc degeneration and L5/S1 disc degeneration as indicated in the report by Dr Blue in 1999.  Yet, medical opinion in later years depicts no severe functional effects.  Dr Tsang, in 2002, described Mr McAndrew’s neck complaint as causing moderate effect on certain functions only and his back and knee conditions as having a minor effect on certain functions only.  She concluded that orthopaedic conditions would not prevent Mr McAndrew from working.  Dr Hadwin’s musculoskeletal examination in July 2008 is three years after the start of the assessment period.  It revealed pain-free joints, no joint laxity and a full range of movement in the knee, hip and shoulder joints.  His opinion was that orthopaedic conditions would not prevent Mr McAndrew from working full-time or substantial part-time hours.  Mr McAndrew made reference to his imbalance as being a relevant factor affecting his work but, on the evidence of Dr Cameron, I am satisfied that this is associated with his accepted disability of alcohol dependence.  The medical evidence is supportive of the functional improvement, as described by Mr McAndrew, since 1999.

39.     Dr Carter recommended in July 2004 that Mr McAndrew cease work.  Despite that, he returned to Australia in 2005 to work for two months.  Mr McAndrew’s evidence was that he reduced his hours in 2004 and 2005 to 15 hours per week.  His description of a typical day at work reveals that he was able to control his own activities such that he could leave the barracks when it suited him to do so and engage in the consumption of alcohol.  Dr Carter saw him on 20 July 2005 and was aware that he was completing a session with the Army Reserves at that time.  Her opinion was that he was not able to cope because of his psychiatric conditions, that he should retire and that, indeed, if he did not retire she would feel obliged to advise his employer of the severity of his condition. 

40.     I have noted Mr Kelly’s reference to the prospect of Mr McAndrew’s promotion to the rank of Warrant Officer and his contention that Mr McAndrew must have been performing his clerical duties to a reasonable standard.  However, apart from the assertion by Mr McAndrew that this had happened, there is no material before me about the terms of, timing of or reasons for such an offer being made.  Mr McAndrew also said that, because he worked on his own, no one really knew what he was doing.  Further, there is no evidence that he was not carrying out his responsibilities.  Rather, his evidence was that he was finding it increasingly difficult to do so.  That finding is supported by his willingness to continue in that role even after Dr Carter, in 2004, recommended that he retire because of his psychiatric conditions. He last worked on 31 July 2005. 

41.     In relation to working in a clerical capacity, I am satisfied that the answer to the third Flentjar question is “yes”. 

Step 4:

42. As there are affirmative answers at steps 2 and 3, the question is whether Mr McAndrew, by reason of being prevented from continuing to undertake that work, is suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? The second limb of s 24(1)(c) of the Act is qualified by the terms of s 24(2)(a)(i) thereof. Mr McAndrew will not be taken to be suffering a loss of salary or wages, or of earnings on his own account by reason of his service-related incapacity, if he ceased to engage in remunerative work for reasons other than that incapacity. I am satisfied that Mr McAndrew ceased to engage in remunerative clerical work only because of the incapacity relating to his accepted disabilities, in particular, his post traumatic stress disorder and alcohol dependence. In other words, I am satisfied that, absent his accepted disabilities, he would have continued with his pattern of employment in a clerical capacity. Clearly, Mr McAndrew will receive no income from the Army Reserve and, therefore, is suffering a consequential loss of wages. I am satisfied that step 4 must also be answered in the affirmative.

RATE OF PENSION

43. I am satisfied that Mr McAndrew meets the requirements of s 24 of the Act. The earliest effective date which may be set in an assessment matter is the date of the initiating claim by Mr McAndrew. This was 29 July 2005, the commencement of the assessment period. At that stage, he was in receipt of pension at 100% of the general rate. As a result of the foregoing, the special rate of pension is payable to him with effect from 1 August 2005, the day after he ceased work. Accordingly, pension continues to be payable at 100% of the general rate under s 22 of the Act from and including 29 July 2005 and at the special rate under s 24 of the Act from and including 1 August 2005[13].

[13] Dates are set in accordance with the terms of ss 21(1), 157(3) and 177(2) of the Act.

Decision

44. The decision under review is set aside and in substitution thereof is the Tribunal’s decision that pension is payable at 100% of the general rate under s 22 of the Act from and including 29 July 2005 and at the special rate under s 24 of the Act from and including 1 August 2005.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Member RG Kenny,

Signed:………………[Sgd]……………………………..   

Elizabeth Young, Research Associate

Date of Hearing  6 November 2008
Date of Decision  27 November 2008
Counsel for the Applicant         Mr A Harding
Solicitor for the Applicant          Mr T O’Connor
Counsel for the Respondent     Mr J Kelly, Departmental Advocate